Commentary

Water Board should reject Mountain Valley Pipeline permit this time around

October 26, 2021 12:03 am

Opponents of the Mountain Valley Pipeline project led a tour of the denuded, muddy construction site in June 2019 at Four Corners Farm in Franklin County. (Mason Adams/ For the Virginia Mercury)

On Dec. 14, the State Water Control Board is expected to vote on whether to approve or deny a stream crossing permit for Mountain Valley Pipeline.

The seven members of the board – an independent regulatory body composed of private citizens – have been tasked with determining whether the draft permit released by the Virginia Department of Environmental Quality will adequately protect more than 200 waterbodies in the state.

Fortunately, the answer is clear: the permit offers no such assurances. 

Not even close.

To understand why, look no further than MVP’s own problematic history in Virginia.

When the stream crossing permit first came before the board in 2017, a majority of the members – at the behest of DEQ – voted to waive the state’s regulatory authority under the Clean Water Act, and to defer to the Nationwide Permit 12 issued by the U.S. Army Corps of Engineers.

Speaking out against DEQ’s recommendation at the time were many members of the public, including landowners, former DEQ staff, and scientists with terminal degrees. They repeatedly warned that MVP would not be able to control erosion and sediment runoff on the steep slopes along MVP’s proposed route, and that water quality violations were not only reasonably foreseeable, they were all but guaranteed.

Unfortunately for the commonwealth, these warnings have come true, over and over again.

The violations have been so egregious and so many that in December 2018 the board decided to reconsider its permit decision. When the board announced this, MVP responded by threatening to ignore the board’s decision, and angrily insisted that only the Federal Energy Regulatory Commission had any actionable authority over the pipeline.

While the board ultimately elected not to overturn its previous approval — after an hours-long closed-door meeting, the details of which have never been publicly disclosed — this was only one chapter in the saga of MVP’s permit woes. 

Since construction began on the MVP in 2018, numerous court cases have validated the public’s concerns about the pipeline, and invalidated permits issued to MVP.

In July 2018, the U.S. Court of Appeals for the 4th Circuit tossed out permits issued by the U.S. Forest Service and Bureau of Land Management. In its ruling, the court lambasted the agencies, stating that the public “deserve[s] more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands.”

Mere months later, in October 2018, the 4th Circuit Court suspended NWP 12 for MVP after finding the Corps overstepped its authority. When the Corps finally reissued the permit to MVP in September 2020, the court immediately issued a stay of the permit; six months earlier the entire NWP 12 program had been suspended after a separate ruling found the Corps acted “arbitrarily and capriciously” in renewing the permit program.

In light of this history, it is puzzling that not only has DEQ been consistently wrong on the MVP, it has continued supporting the pipeline.  

At public hearings last month, DEQ prefaced its report to the board with slides highlighting MVP’s own estimates of project completion to date. Whether the MVP has yet to break ground, or is currently under construction, has no bearing whatsoever on the board’s decision regarding the stream crossing permit. 

Conspicuously absent from DEQ’s report was the fact that Virginia has issued MVP over $2 million in fines for hundreds of water quality violations and related environmental damages. Such information is central to the board’s decision – the Clean Water Act grants the board the right to deny the stream crossing permit if it lacks “reasonable assurance” that state water quality standards will be upheld.

What are these fines if not the complete absence of reasonable assurance?

When the North Carolina DEQ was asked to approve the same permit for an extension of the MVP project – and for considerably fewer streams – it took one look at the project’s troubled past and had no problem denying the permit.

Twice.

Recently, the U.S. Environmental Protection Agency added its voice to the choir of experts finding fault with MVP’s permit applications.

This leaves the Virginia DEQ all but isolated in its position on MVP’s permits.

It is critical the board exert its independence and review DEQ’s draft stream crossing permit in light of the extensive damages MVP has inflicted on the state’s waterways, and the detailed concerns of federal regulators.

It will be far, far easier for the board to defend denying MVP’s draft stream crossing permit.

It will also be the right decision.

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Jacob Hileman
Jacob Hileman

Jacob Hileman is an environmental hydrologist with a doctorate from the University of California, Davis. He was raised in the Catawba Valley of Virginia, and is presently a researcher with the Centre of Natural Hazards and Disaster Science at Uppsala University.

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